13.1 Treaty-Making Process and Senate Ratification

The treaty-making process involves a delicate balance between presidential power and Senate oversight. The Constitution grants the President authority to negotiate treaties, but requires Senate ratification by a two-thirds majority. This system of checks and balances aims to ensure treaties reflect national interests while preventing unilateral executive action.

The scope of the treaty power is broad but not unlimited. Treaties become part of the "supreme law of the land" under the Supremacy Clause, but must comply with constitutional limitations. Debates continue over the Senate's use of reservations and the rise of executive agreements as alternatives to formal treaties.

Treaty-Making Power: Constitution & Process

Constitutional Basis for Treaty-Making Power

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• Article II, Section 2, Clause 2 of the U.S. Constitution grants the President the power to make treaties, with the advice and consent of the Senate, provided two-thirds of the Senators present concur
• This provision establishes the fundamental constitutional framework for the treaty-making process, dividing responsibilities between the executive and legislative branches
• The Constitution's allocation of treaty-making authority reflects the Framers' intent to create a system of checks and balances in foreign affairs
• The high two-thirds majority requirement in the Senate underscores the significance of treaties as binding international commitments

Roles of the President and Senate

• The President, as the chief executive and head of state, is responsible for negotiating and signing treaties on behalf of the United States
  • The President's role involves initiating treaty negotiations, appointing diplomats, and providing general foreign policy guidance
  • Once a treaty is signed, the President submits it to the Senate for its advice and consent
• The Senate's role in the treaty-making process is to provide "advice and consent," which involves reviewing, debating, and ultimately voting on whether to ratify the treaty
  • The Senate Foreign Relations Committee typically holds hearings on the treaty and may propose amendments or reservations
  • The full Senate then debates and votes on the treaty, with a two-thirds majority required for ratification
• The Senate may also propose amendments or reservations to a treaty before granting its consent to ratification
  • Amendments alter the text of the treaty itself, while reservations limit or clarify the U.S.'s obligations without changing the treaty's language
  • If the Senate approves amendments, the treaty must be renegotiated with the other parties to the agreement

Treaty Power: Scope & Limitations

Supremacy Clause and Domestic Legal Effect

• The Supremacy Clause (Article VI, Clause 2) establishes that treaties, along with the Constitution and federal laws, are the "supreme Law of the Land," binding on all states and superseding conflicting state laws
  • This provision ensures that treaties have the same legal status as federal statutes and are enforceable in U.S. courts
  • State laws or policies that conflict with treaty obligations may be preempted or invalidated under the Supremacy Clause
• The Supreme Court has recognized the concept of "self-executing" treaties, which become domestically enforceable as federal law upon ratification without the need for implementing legislation by Congress
  • Self-executing treaties have direct legal effect and can be invoked by individuals in U.S. courts (Asakura v. City of Seattle)
• In contrast, "non-self-executing" treaties require implementing legislation to become effective in domestic law, even if they are binding on the U.S. internationally
  • Non-self-executing treaties do not create individually enforceable rights without further congressional action (Medellín v. Texas)

Constitutional Limitations on the Treaty Power

• Despite the broad scope of the treaty power, it is not unlimited. Treaties must be consistent with the Constitution and cannot infringe upon fundamental constitutional rights or allocate powers contrary to the Constitution's structure
  • For example, a treaty cannot grant the federal government powers not enumerated in the Constitution or deny individuals due process rights
  • The Supreme Court has suggested that the treaty power is limited by the Tenth Amendment and cannot be used to regulate matters reserved to the states (Missouri v. Holland)
• The Supreme Court has also held that a later-in-time federal statute can supersede a conflicting treaty provision for domestic law purposes, although this does not affect the U.S.'s international obligations under the treaty
  • This "last-in-time" rule means that Congress can effectively override a treaty through subsequent legislation (Whitney v. Robertson)
  • However, the U.S. would still be responsible for any breach of its international obligations resulting from such conflicts

Senate's Role in Treaty Ratification

Historical Development

• The Framers of the Constitution included the Senate in the treaty-making process as a check on the President's power and to ensure that treaties reflect a broad national consensus
  • The Framers believed that the Senate, with its longer terms and equal representation of states, would provide a more stable and deliberative influence on foreign policy
• Throughout U.S. history, the Senate has played an active role in the treaty process, sometimes rejecting or significantly modifying treaties before granting its consent to ratification
  • For example, the Senate famously rejected the Treaty of Versailles after World War I, despite President Wilson's strong support for the treaty
  • The Senate has also used its "advice and consent" power to shape the content of treaties through amendments and reservations (e.g., the Bricker Amendment debates of the 1950s)

Contemporary Debates and Controversies

• In recent decades, the Senate has increasingly used "reservations," "understandings," and "declarations" (RUDs) to clarify or limit the U.S.'s obligations when ratifying treaties, sparking debate about the appropriate scope of the Senate's role
  • RUDs can be used to interpret ambiguous treaty language, declare a treaty non-self-executing, or limit the U.S.'s compliance with certain provisions
  • Some argue that the Senate's use of RUDs undermines the integrity of the treaty-making process and the U.S.'s international commitments, while others defend it as a legitimate exercise of the Senate's constitutional role
• Contemporary debates also focus on the political dynamics of treaty ratification, including the impact of partisan polarization and the influence of interest groups on the Senate's deliberations
  • The high two-thirds majority requirement for treaty ratification can make it difficult to secure approval for controversial agreements, especially in a polarized political climate
• The Senate's failure to ratify certain high-profile treaties, such as the United Nations Convention on the Law of the Sea, has raised questions about the effectiveness of the treaty-making process in an era of global interdependence
  • Some argue that the Senate's reluctance to approve multilateral treaties undermines U.S. leadership and credibility on the world stage
  • Others contend that the Senate's role ensures that treaties receive thorough scrutiny and reflect the will of the American people

Treaties vs Other Agreements

Executive Agreements

• In addition to treaties, the U.S. enters into other types of international agreements, such as executive agreements and congressional-executive agreements, which are not subject to the Senate ratification process outlined in the Constitution
• Executive agreements are international agreements concluded by the President based on his independent constitutional authority or preexisting statutory authorization, without the need for Senate approval
  • Examples include agreements related to the President's power to receive ambassadors or to act as Commander-in-Chief
  • The President may also conclude executive agreements pursuant to existing treaties or congressional delegations of authority
• While treaties and congressional-executive agreements are both considered "supreme Law of the Land" under the Supremacy Clause, the domestic legal status of executive agreements is more complex and depends on the source of the President's authority
  • Sole executive agreements, based on the President's independent constitutional powers, may have limited domestic legal effect compared to treaties or congressional-executive agreements
  • Executive agreements pursuant to treaties or congressional authorization may be more likely to preempt conflicting state laws

Congressional-Executive Agreements

• Congressional-executive agreements are international agreements approved by a simple majority in both houses of Congress, often through legislation that authorizes or approves the agreement
  • These agreements are used for a wide range of subjects, such as trade (NAFTA), foreign assistance, and defense cooperation
  • Congressional-executive agreements have become increasingly common in recent decades, sometimes as an alternative to the more cumbersome treaty ratification process
• Like treaties, congressional-executive agreements are considered part of the "supreme Law of the Land" and can supersede conflicting state laws
  • The Supreme Court has generally treated congressional-executive agreements as equivalent to treaties for domestic legal purposes (United States v. Belmont)
• The choice between pursuing an international agreement as a treaty, executive agreement, or congressional-executive agreement has significant implications for the balance of power between the President and Congress in foreign affairs
  • Some argue that the extensive use of congressional-executive agreements has undermined the Senate's constitutional role in the treaty-making process
  • Others contend that congressional-executive agreements provide a more efficient and democratically accountable means of conducting foreign policy